Life Partnerships / Cohabitation in South Africa

A life partnership refers to a couple living together outside marriage in a relationship which is similar to, or has most of the characteristics of a marriage. Various other terms are used to signify this relationship the most common being domestic partnership, cohabitation, living together, de facto marriage and common-law marriage.

None of the legal consequences of marriage automatically ensue if a couple live together without getting married.

 

This is the case regardless of the duration of the life partnership. Thus, for example, life partners do not automatically have the right to share in each others property during the subsistence of the life partnership or upon its termination and although life partners may appoint each other as heirs in a will, they do not inherit from each other in terms of the rules of intestate succession. Children born from a life partnership are born out of wedlock. Furthermore, in the absence of a contractual undertaking in which they agree upon a duty of support, our law does not recognize a general duty of support between life partners.

In Volks v Robinson (2005) the Constitutional Court considered the constitutionality of legislation which restricts certain benefits to spouses and not life partners. The Maintenance of Surviving Spouses Act 27 of 1990 grants the surviving spouse in a marriage which is dissolved by death a claim for maintenance against the estate of his/her deceased spouse until his/her death or remarriage in so far as he/she cannot provide for his/her reasonable maintenance needs from his/her own means and earnings. The issue before the Court was whether the Acts failure to include permanent life partners within its ambit is unconstitutional.

The Court found that differentiating between a spouse and a life partner by excluding the life partner from a statutory maintenance claim against the estate of his/her deceased life partner in circumstances where a spouse would have had such a claim does not constitute unfair discrimination. The Court specifically found that marriage is a vitally important social institution and that it would be constitutional not to afford the same legal benefits to unmarried persons that married persons are entitled to.

Life partners can use contracts to achieve a measure of protection as against each other. The life partners can regulate their rights and duties by means of a life partnership agreement (which is also commonly known as a cohabitation or domestic partnership agreement). In this agreement they may, for example, agree on the following:

  • Undertake to maintain each other while the relationship lasts;
  • Agree on post-separation maintenance (which is sometimes called palimony);
  • Regulate ownership of the property each of them owned before the inception of the life partnership;
  • Agree on ownership of property acquired during the subsistence of the life partnership;
  • Agree on liability for household necessaries;
  • Agree on occupation of the common home during the subsistence of the life partnership and after its termination.

The life partnership agreement may contain any provision which is not impossible, illegal or immoral. Thus, for example, the life partners cannot agree that their life partnership may only be dissolved by a court in terms of the Divorce Act 70 of 1979.

Life partners may also appoint each other as heirs in their respective wills or in a joint will to achieve a measure of protection.

M A MALAN ATTORNEYS – THE MARRIAGE LAW SPECIALISTS will be able to assist you in preparing and finalising your life partnership agreement and/or your will!